I. IntroductionDogs clearly occupy a special place in the hearts and homes of their human guardians. But dogs, like any other form of property in our legal system, are subject to the authority of federal, state, and local laws. Most laws that directly regulate the conditions of ownership of dogs fall at the local level. This often strict exercise of police power over dogs by the state and its associated municipalities may well be rooted in the real fear of their sometimes vicious tendencies and their legacy of rabies infestation. These local laws, often called ordinances, are almost universally seen as valid exercises of police power. They can cover a number of areas related to dogs, including the restricting of loose dogs, the number of dogs one may harbor in his or her house, as well as the keeping of a vicious dog. Perhaps the most difficult exercises of police power for owners are those ordinances that concern the seizure and destruction of dogs for violating any number of provisions. It is the judicial interpretation of these ordinances that often provides the most litigation, as owners look to state law for a stay of execution. Whether these laws seem harsh or inflexible, all have been generally held as valid exercises of police power.

This paper will analyze the police power authority vested in local governing units, specifically examining those statutes that enable municipalities to enact ordinances affecting dogs (note that more specific dog ordinances subjects (impoundment and destruction of dogs, zoning issues, dangerous dogs) will soon be addressed in separate papers at the Web Center). It will further explore the constitutional challenges to these ordinances, noting that nearly all such challenges have been held as valid exercises of police power. Within these challenges often emerges the issue of preemption, where state or even federal law usurps a municipal ordinance. The article explores this conflict that occurs in concurrent regulation by state and local units of governments especially with regard to dangerous dogs and the destruction of loose dogs. In the end, the paper concludes that legal challenges to this inherent police power to control animals almost always fail because of the presumptive constitutionality of such enactments. Finally, the paper summarizes the relevant statutes for each state that specifically grant local municipalities the authority to regulate some aspect of dogs (a link to the full text of the statute is also provided).

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II. The Nature of Police PowerPolice power, loosely defined, is that power of a state government to enact and enforce laws for the health, safety, and well-being of its citizenry. This authority is an inherent one, neither conferred by the federal Constitution, the Bill of Rights, or even through most state constitutions. Instead, this power is said to derive from the inherent reserved right of a state as a sovereign to enact laws that protect the general welfare of its citizens. Police power is limited by the federal and state constitutions, especially with regard to due process rights. These laws must meet constitutional standards as exercises of reasonable regulations.

Dogs are subject to state police powers because of their status as property. In all states, dogs are assigned a property status. (See, Oregon's Dogs as Personal Property, OR ST 609.020 for an example). Thus, states may regulate this form of property to protect the health and safety of its people. In fact, ownership of an entire breed of dog may be outlawed under the guise of protecting citizens.

Dogs are subject to police power and may be destroyed or regulated to protect citizens. Thus, property in dogs is of an imperfect or qualified nature, and a harmless or inoffensive American Pit Bull Terrier may be banned in order to abate the threat presented by other American Pit Bull Terriers.

Rhoades v. City of Battle Ground, 114 Wash.App. 1062, *7, 2002 WL 31789336 (Wash.App. Div. 2), (Not Reported in P.2d). This power, though often far reaching is based in a state's general police power.

From the states’ inherent police power rights, local governments may derive direct authority to regulate through the state’s constitution. Because police power is inherent to the state, local authority to regulate dogs must be directly or even indirectly delegated. This can be achieved through a constitutional amendment. For example, the state of Washington Constitution provides: "[a]ny county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws." Wash. Const. art. XI, sec. 11. See also, Lenci v. City of Seattle, 63 Wn.2d 664, 667, 388 P.2d 926 (1964). It is through state statute by which most states provide some grant of local authority. Only a few states do not appear to provide any specific written reference as to the right of local government to regulate dogs (though the right may be derived from other broader sources dealing with animals in general). More often than not, the power also rests within statutory expression that grants municipalities broad and specific regulatory powers.

Of related concern is the issue of whether a state confers “home-rule” power. Home-rule power generally refers to a portion of a state’s constitution or even a legislative enactment that allows local government to self-govern with respect to the terms laid out in the article or legislation. This apportioning of power typically allows local units to enact ordinances for the health, safety and welfare of its citizens. While an explicit discussion of home-rule authority is beyond the scope of this paper, suffice to say that states may delineate bounds of home-rule authority. Some states provide that a home-rule city may enact ordinances pursuant to its municipal charter, but the state legislature may limit or augment these provisions. 56 Am. Jur. 2d § 110. Other states may leave the home-rule power open-ended, such that a municipality may exercise all powers that have not been expressly defined by the state constitution or statute. Id. A state’s home-rule provisions inevitably determine the degree to which a municipality can enact ordinances and under what circumstances this can be done.

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III. Local Regulation of DogsMost states expressly allow local municipalities to enact ordinances concerning dogs. In fact, most states have a form of legislation that gives localities specific authority regarding dogs. This may be in addition to those general police powers under which dogs would normally fall. Power may be limited to a few certain categories, with explicit state regulation in other areas of dog control (like vaccination against rabies or the procedure for declaring a dog “dangerous”). Other states give broad latitude to local units in the regulation of dogs. The statute in Arkansas provides:

Upon the written request of the governing body of a suburban improvement district, a county may by ordinance control and regulate dogs and cats within all or any part of the suburban improvement district.

AR ST § 14-16-701. In contrast, some states may even employ a comprehensive statutory scheme for regulating dogs, while at the same time providing a section that gives local units nearly plenary power with respect to dogs.

Ironically, it is one of the smallest state that has the most comprehensive statutory schemes for regulating dogs at the local level. Rhode Island gives local units the power to:

. . . make any ordinances concerning dogs in their cities or towns as the councils deem expedient, pertaining to the conduct of dogs, which ordinances shall include regulations relating to unrestricted dogs, leash laws, confinement, and destruction of vicious dogs.

RI ST § 4-13-15.1(a). The scheme further ascribes individually listed towns the power the control and impound dogs. See, RI ST § 4-13-1.1. Most states do not delegate local power to regulate dogs to this specific of a degree.

The power to control dogs has a long history in most states. In fact, it was in 1896 that the General Assembly of Rhode Island enacted comprehensive legislation for the purpose of regulating the licensing of dogs, the liability of dog owners for damage caused by their animals, and the right of private citizens to defend themselves against dog attacks. Vukic v. Brunelle, 609 A.2d 938 (R.I.,1992). This legislation also provided for the summary destruction of unlicensed dogs found at large. Former Section 4-13-12 provided:

Any person may, and every such special constable, so appointed, and every police officer and constable shall, kill or destroy or cause to be killed or destroyed, all dogs going at large and not licensed and collared according to law; and for each dog so killed, destroyed and buried, such special constable shall be entitled to receive from the town or city treasurer the sum of two dollars.

While Rhode Island and most states expressly provide for some form of local regulation, some states grant this power in the negative. Rather than expressly stating that local units have the power to regulate dogs, these statutes decline to impose restrictions on local power. More specific statutes regulating some aspect of dog law (i.e., dangerous dogs or impoundment) carve out an exception providing that the statute shall not limit local entities in enacting other measure that do not conflict with state law. Kentucky law provides:

Nothing in this chapter shall be construed to prohibit or limit the right of any city to pass or enforce any ordinance with respect to the regulation of dogs, the provisions of which are not inconsistent with the provisions of this chapter.

(d) The provisions of this chapter shall not prevent the local authorities in any city, county, or city and county, by ordinance and within the exercise of the police power of the city, county, or city and county from imposing reasonable additional requirements necessary to regulate and control protection dogs according to their local needs and not inconsistent with the provisions of this chapter.

CA BUS & PROF § 7582.5.

It is the minority of states that do not provide some statutory language specific to local dog ordinances. Instead, these states likely rely on general police powers granted to local governing units. From whatever authority the power to regulate dogs is derived, the chief limit on the exercise of these powers is that of the state constitution.

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IV. Constitutional ChallengesMunicipal ordinances like most legislative enactments are deemed presumptively constitutional and the party challenging the ordinance has the burden of establishing its invalidity or unreasonableness. While dogs occupy a significant place in their owners’ lives, they are still deemed property and do not affect a substantial interest in terms of constitutional challenges. Thus, a party must demonstrate there is no rational or substantial relationship of the law to the health safety and welfare of the community. In addition, a reviewing court will gave great deference to local laws and “[w]here the reasonableness of an ordinance is debatable, courts will refrain from interfering with the municipality's exercise of legislative discretion.” State v. Schuler, 1997 WL 76337, *1 (Minn.App.,1997) (not reported in N.W.2d).

Since localities are often affirmatively or implicitly granted broad police powers, these actions taken to protect citizens are not scrutinized to determine whether supported facts justified the actions. In fact, a municipality “is not required to show affirmatively it enacted an ordinance based on empirical, factual evidence; rather, the party challenging the ordinance must demonstrate that there is no rational relationship between the ordinance and a health or safety goal of the community.” Schuler, supra at *2.

In Schuler, for example, the court upheld an ordinance that limited the number of dogs and cats one can own at a residence as a valid exercise of police power. The court found that Schuler failed to offer evidence that regulating the number of dogs per household was unrelated to the public welfare, as controlling the problems of dog noise and odor affected the health and general welfare of the community. Id. Again, this case illustrates the presumptive constitutionality of animal ordinances even in the face of an individual’s right to own property.

Dogs are often regulated at the local level, in part because this power is derived from state statute, and because municipalities are in a better position than the state legislature to enact laws to meet its citizens’ specific needs. This is often the case with loose dogs, or dogs found running at large. Certain cities and towns may perceive loose dogs as a greater threat due to agricultural interests or the concern of dog attacks on people. Likewise, cities with more multi-family or congested housing may see a need to limit the number of pets one may own in a single residence. Dogs are also burdened by the past; many laws affecting dogs were enacted prior to the vaccination of dogs for rabies and other diseases that often turned loyal pets savage. In any event, municipal corporations generally have broad latitude in enacting these measures.

It is that inherent deference to municipalities that also makes a legal challenge to an ordinance an uphill battle. Most constitutional challenges based on vagueness, overbreadth, or a general overreaching of authority will ultimately fail. However, concerns of due process do arise in conjunction with challenges to local ordinances. Generally, these result from owners challenging the impounding of their pets. This topic and the associated constitutional challenges is discussed in greater depth in the Web Center's Detailed Discussion of Dog Impoundment Laws. Suffice to say that most courts now require a procedure that gives owners a notice and a meaningful opportunity to be heard prior to euthanizing an impounded companion animal.

In evaluating the constitutionality of an ordinance, a reviewing court will give broad deference to the governing body’s decisions regarding animals. Indeed, one case explained that a local legislative body can draw a different conclusion from the state’s supreme court in areas of public safety and the exercise of the local government's police powers. Rhoades v. City of Battle Ground, 114 Wash.App. 1062, 2002 WL 31789336 (Wash.App. Div. 2), (Not Reported in P.2d). In Rhoades, defendant challenged a city ordinance that prohibited the ownership of exotic animals in the city limits while apparently allowing ownership of dangerous dogs under circumscribed conditions. The court found that there was a legitimate interest in treating exotic animals and dangerous dogs differently, as the city council determined that exotic animals were more of a threat to the health and safety of its population. The council determined "wild" animals are more dangerous when caged than when encountered in the wild.

A determination that exotic animals are more dangerous than dogs adjudged ‘dangerous’ is sufficient--on rational basis review--to justify the disparate treatment between these classes of pet owners . . . a legislative body need not approach every problem the same way; thus, it may treat the danger presented by dangerous dogs differently from the danger presented by exotic animals.

Id. at *4. The council’s justification clearly met the rational relationship test to uphold the constitutionality of the ordinance, despite the disparate treatment of animal owners. This case also shows that courts will often defer to the municipalities assessment of its needs.

While most challenges to ordinances appear to be almost summarily upheld, one case has suggested that there needs to be at least some underlying rational basis for its adoption. Even within the category of health and safety, an ordinance may need some demonstrated basis, or at least some language to that effect, to be valid. In Com. v. Creighton, 639 A.2d 1296 (Pa.Cmwlth.,1994), a resident of the Borough of Carnegie in Pennsylvania challenged an ordinance limiting the number of cats and/or dogs that a person could keep within the Borough to a total of five (the respondent in this case had approximately 25 cats whom she testified were former “mousers” strays from area industrial plants that shut down). The ordinance was enacted under the powers that permit Boroughs to “[t]o prohibit and remove any nuisance, including but not limited to accumulations of garbage and rubbish . . .” and those affecting “the health, safety, morals, general welfare and cleanliness and the beauty, convenience, comfort and safety of the borough.” Id. at 1298-1299. While the court first noted that:

[w]e are concerned here with living animals, rather than with the inert junk involved in most nuisance cases . . for our purposes here, the critical consideration of whether the regulated activity constitutes a nuisance or is otherwise contrary to the public health, safety or general welfare is as pertinent to living animals as it is to junk materials.

Id. at 1299. Since the ordinances under these provisions are required to affirmatively prove that a nuisance in fact exists, the court invalidated the pet number ordinance because the law did not indicate why more than five cats or dogs constituted a nuisance. Id. However, the court went on to analyze the law’s validity under the broad power to regulate the public interest. In doing so, the court found that the Borough Code also failed to articulate what legitimate public health, safety and welfare goals the Borough sought to advance by enacting this ordinance. “From the information before us, we simply cannot say whether the Borough ordinance here is a reasonable means to effectuate a legitimate governmental goal.” Id. at 1301.

One interesting area that has become ripe for challenges in recent years are ordinances targeting what can be termed “dangerous” or “vicious” breeds of dogs. These controversial laws either prohibit or severely circumscribe ownership through the use of prohibitive insurance premiums and mandatory kenneling of certain breeds of dogs (typically Pit Bulls). This is based both on the perceived threat these breeds present and the somewhat equivocal empirical data concerning their “inherent” dangerousness. (See Web Center Breed Specific Legislation Paper). Several states have specifically prohibited local governments from enacting breed-specific ordinances. (See, Minnesota (MN ST 347.51), Florida (FL ST 767.14) and Virginia (VA ST 3.1-796.93:1) for examples). In those states that grant broad power to local units to adopt dog ordinances without limitation, it appears breed-specific ordinances are still viable.

Constitutional challenges to local ordinances usually fail, despite the severe or restrictive nature of the law. There are several reasons for this. First, as mentioned previously, state laws empower local entities to make laws governing their constituents, provided those laws do not preempt existing state or federal laws. For example, in Blackwell, defendant challenged a local Pierre City ordinance pertaining to the regulation of dangerous dogs. City of Pierre v. Blackwell, 635 N.W.2d 581 (S.D.,2001). In ruling that defendant failed to demonstrate the Pierre City Ordinance was unreasonable or arbitrary on its face, the court found that the South Dakota legislature empowered cities to regulate dogs through SDCL 9-29-12, which provides that a city may regulate, prohibit, impound, and tax dogs “running at large.” Id. While defendant claimed that this circumscribed cities’ actions to only loose dogs, the court also found that additional power to regulate dogs stemmed from the cities general police powers to abate nuisances, and exercise jurisdiction for the health, safety, and welfare of its citizens. Id. “Thus, municipalities may freely exercise police power to regulate pet ownership so long as the ordinance is reasonable and the means employed are necessary to accomplish a legitimate governmental interest.” [internal citations omitted]. Id. at 585. Here, the court found the Pierre City Ordinances at issue clearly focused on the public safety concern of “preventing the tragic consequences associated with uncontrolled dangerous pets.” Id.

The second reason attacks on ordinances fail is that it is well established through many state court rulings that any legislative enactment is presumed reasonable, valid and constitutional. Blackwell supra.; (Jefferson v. Mirando, 719 N.E.2d 1074, 1075 (Ohio Co.,1999), “The village of Jefferson's ordinance benefits from a strong presumption of constitutionality, and defendant Mirando bears the burden of demonstrating unconstitutionality of this ordinance beyond any remaining fair debate on the issue.”). This presumption creates a climate of deference to local regulations. As noted in Mirando, even the United States Supreme Court has held that ownership and control of dogs may be regulated as needed for the protection of citizens. See, Sentell v. New Orleans & Carrollton RR. Co. (1897), 166 U.S. 698, 17 S.Ct. 693, 41 L.Ed. 1169; Nicchia v. New York (1920), 254, U.S. 228, 41 S.Ct. 103, 65 L.Ed. 235. As a result, the party who attacks a municipal ordinance has the burden of overcoming this presumption by demonstrating that the ordinance is both unreasonable and arbitrary. Mirando, supra. Perhaps most telling was dicta by the court regarding the increasing number of pet ordinances:

From our extensive research on similar decisions throughout the country, we think it significant that with the growing urbanization over the past fifty years, courts have become increasingly deferential to local authorities in upholding diverse pet control measures.

City of Pierre v. Blackwell, 635 N.W.2d at 585. Thus, a challenge to an ordinance must overcome the deference a court gives a local unit to regulate matters affecting the health, safety, and welfare of its citizens.

While the broad grant of power to local government to regulate dogs may, at first blush, appear unfettered, existing state and federal dog laws limit it. One of the primary related challenges stems from a claim that a local ordinances has been preempted by a state statute.

Never make someone a priority in your life when that someone treats you like an option.

V. PreemptionTo avoid confusion in the enforcement of such laws at all levels, there is an order of supremacy with each level of law. This concept, known as preemption, ensures that laws at the highest level of government trump those conflicting laws at lower levels of government. Thus, federal laws enacted by Congress will override state laws intended to regulate the same subject and local ordinances that conflict with state laws concerning the same matter will defer to the state legislation. Because each level of government is empowered to enact such laws, the federal and individual state constitutions have preemption clauses that specifically state conflicting laws must yield to the higher federal or state laws. The Supremacy Clause of the Federal Constitution states:

This Constitution and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

U.S. Const. art. VI, cl. 2. Preemption on the federal level may be found where Congress's intent to preempt the field is either expressly stated or implicit in congressional policy. Brotherhood of Maint. of Way Employees v. Chicago & N.W. Transp. Co., 514 N.W.2d 90, 93 (Iowa 1994).

Claims of federal preemption of dog laws are unusual, as the federal government gives great deference to state laws that affect citizens’ health, safety, and welfare. (However, see Black Hawk County v. Jacobsen, 2002 WL 1429365 (Not Reported in N.W.2d Iowa App.), 2002, where respondent alleged that local kennel licensing regulations were preempted by the federal Animal Welfare Act despite the fact the Act expressly contemplates state and local regulation of animals). Moreover, the inherent sovereign nature of the state recognizes that a state is better equipped to address those things that affect the general welfare of its citizens. Thus, preemption challenges to local ordinances typically involve concurrent regulation of dogs at the state level. (For a related discussion of state and federal powers in the regulation of wildlife, see Web Center Intro to Federal Wildlife Law).

Preemption will generally occur where a local municipality attempts to regulate a subject matter for which the state has expressed exclusive control. While the presumptive test is whether the ordinance on its face preempts existing state or federal legislation, courts often employ a multiple part test to determine preemption. The Minnesota Court of Appeals articulated one such test with regard to a challenge to the state’s dangerous dog laws:

(a) Generally, conflict occurs when "the ordinance and the statute contain express or implied terms that are irreconcilable"; (b) more specifically, an ordinance conflicts with state law if it "permits what the statute forbids"; (c) similarly, there is conflict if the ordinance "forbids what the statute expressly permits"; and (d) "no conflict exists where the ordinance, though different, is merely additional and complementary to or in aid and furtherance of the statute."

Hannan v. City of Minneapolis, 623 N.W.2d 281, 284 (Minn.App., 2001). Similarly, the New Jersey Supreme Court has applied a multi-part test in its preemption analysis:

1. Does the ordinance conflict with the state law, either because of conflicting policies or operational effect, that is, does the ordinance forbid what the Legislature has permitted?

2. Was the state law intended expressly or impliedly to be exclusive in the field? 3. Does the subject matter reflect a need for uniformity? 4. Is the state scheme so pervasive or comprehensive that it precludes coexistence of municipal regulation? 5. Does the ordinance stand as an obstacle to the accomplishment and execution of the full purposes and objectives of the Legislature?

State v. Smith, 685 A.2d 73, 76 (N.J.Super.L.,1996), derived from Overlook Terrace Management Corp. v. West New York Rent Control Bd., 71 N.J. 451, 460-62, 366 A.2d 321 (1976), referred to as the “Overlook Test. Both of these cases involved the construction of local dangerous dog ordinances in light of comprehensive state schemes for controlling dangerous dogs. However, each court came to a different result on the issue of preemption.

In Hannan, supra, a local realtor contended that the city ordinance conflicts with state law, because the ordinance "permits what the statute forbids." Id. at 284 The realtor’s dog in Hannan was adjudicated dangerous and sentenced to death for violation of a local ordinance. The court found that realtor’s contention, however, fit squarely under point “d” in the Minnesota test above, in that the local provision was “merely additional and complementary” to the statute. Id. Thus, local action that may even be more severe than the overriding state statute will not be invalidated as long as the state has not expressly precluded local regulation of the area and there is no conflict with state statutes. (See City of Duluth v. Evans, 158 Minn. 450, 452 197 N.W. 737, 737 (1924), "Ordinances may be valid when they relate to the same matter as a state law, even though the punishment prescribed in both be not the same." (citation omitted)). In fact, "statutes and ordinances on the same subject are intended to be coexistent." State v. Dailey, 284 Minn. 212, 215, 169 N.W.2d 746, 748 (1969)). While concurrent regulation of a subject matter is often intended, state statutes may envision exclusive control.

A local ordinance may be invalidated for attempting to regulate a subject matter that is provided by law to be exclusively under state control. While on its face the ordinance may appear to complement the statute, its procedural functioning conflicts with the state statute. In State v. Smith, 685 A.2d 73 (N.J.Super.L.,1996), a dog owner challenged a Hoboken, New Jersey ordinance relating to vicious dogs. Applying the Overlook Test, the court found that the state law preempted the local statute because the state law functions as the sole regulator of this subject matter. (N.J.S.A. 4:19-17 through 4:19- 36, known as the “Vicious and Potentially Dangerous Dog Act”). The court noted that, “[a]t a minimum, the plain language of N.J.S.A. 4:19-36 declares the State's intention that the statute constitutes the exclusive law in this area.” Id. at 405-406. But it was the procedural enforcement of the conflicting laws that led to the ordinance’s invalidation. “Perhaps more importantly, however, is the danger that the procedural features of a municipal ordinance would conflict with the dictates of the statute--as they did in this case--thus inevitably leading to confusion among the parties and the inefficient enforcement of the Act.” Id. at 406. Also underlying the court’s decision that the ordinance was preempted, was the apparent denial of due process in the ordinance.

Challenges based on preemption claims will also fail unless the state legislature has evinced an intent, either expressly or impliedly, to exclusively regulate the activity. The statute must provide that, through its terms, the subject matter is solely a matter of state concern. Hannan, 623 N.W.2d 281. It is not enough that a state has merely provided a detailed statutory scheme. In Hannan, the realtor whose dog was subject to impoundment argued that the state law in the area of dangerous dogs demonstrated an intent for state regulation, as the legislature fully and completely covered the subject matter. Further, as stated by petitioner, “the subject matter is of such a nature that local regulation would have unreasonably adverse effects on the general populace.” Id. at 285. The court disagreed, finding instead that state law expressly provided for local regulation through Minn.Stat. § 347.53 (2000), which gives municipalities full authority to regulate "potentially dangerous dogs," as long as the regulations are not breed-specific. See, Minn.Stat. § 347.51, subd. 8 (2000). In addition, the court found that “Minn.Stat. § 609.227 (2000), which mandates destruction if the owner has committed a misdemeanor or gross misdemeanor for a crime involving the animal, specifies that the ‘section shall not preempt local ordinances with more restrictive provisions.’" Id.

The court’s analysis underscores the notion that a provision for local regulation can be implied by statute, even in the negative. In fact, Minn.Stat. § 347.51, subd. 8 (2000) does not expressly provide that local regulation is permissible, but rather states that only ordinances based on breed-specific parameters are invalid. As stated by the court, “[b]y providing only one express limitation to regulation--that regulation not be breed-specific--the legislature has implicitly given municipalities full authority to regulate dangerous dogs.” Hannan at 285. Thus, an exception, proviso, or savings clause will be construed to include all other provisions. However, the ultimate test for determining whether a local ordinance conflicts with a state statute, is whether the ordinance permits or licenses that which the statute forbids and prohibits, or vice versa. Jefferson v. Mirando, 719 N.E.2d 1074 (Ohio Co.,1999).

The previous cases demonstrate the prevalence of dangerous dog regulation at both the state and local level in recent years. States usually provide for the regulation of dangerous or vicious dogs by statute. Often, local units that are given broad police powers to regulate dogs may also create ordinances that regulate dangerous dogs. States may provide for stricter local regulation of dangerous dogs by statute. However, ordinances that “leave no room for concurrent jurisdiction” or cannot be harmonized with the state dangerous dog law will generally be invalidated. Rabon v. City of Seattle, 957 P.2d 621, 626 (Wash.,1998). This situation occurred in the case of Rabon. Petitioner contended that the trial court erred by denying a preliminary injunction preventing destruction of his two dogs pursuant to Seattle animal control ordinances because the local ordinances conflicted with state statutes governing dogs. Initially the court noted that the Washington Constitution, Article XI, section 11, provided that "[a]ny ... city ...may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws." Id. at 624-625. Thus, the court observed, a municipality may enact an ordinance touching upon the same subject matter, as long as the state law does not purport to be the exclusive regulator. Id.

The ordinance at issue in Rabon demanded the destruction of the dogs who had not actually bitten a person, pursuant to SMC 9.25.030(A)(4) (which authorizes the City's finance director to order the humane destruction of a vicious animal where, among other things, the owner has been found guilty of owning a vicious animal). The state law relating to dangerous dogs provided that “potentially dangerous dogs” shall be regulated only by local, municipal, and county ordinances. In fact, the statute provided that, "[n]othing in this section limits restrictions local jurisdictions may place on owners of potentially dangerous dogs." RCW 16.08.090(2). While petitioner conceded that there was no express statement evincing preemption, the intent appears by necessary implication. Petitioner contended that since the local ordinance did not distinguish between “dangerous dogs” and “potentially dangerous dogs,” instead using the term “vicious,” the local law was preempted by the state law dealing with dangerous dogs. The court disagreed, finding that concurrent jurisdiction was provided by statute. Further, the statutes do not merely provide for concurrent jurisdiction, but rather expressly provide that sole jurisdiction over "potentially dangerous" dogs lies only with local government. Id.

The court finally rejected petitioner’s contention that the ordinance forbids possession of dangerous dogs while the state statute expressly allows such possession under RCW 16.08.080. The court held that a local ordinance may require more than state law requires where the laws are prohibitive. Lenci v. City of Seattle, 63 Wash.2d 664, 671, 388 P.2d 926 (1964). “In exercise of its police power a municipality may wish to provide further protection from dangerous or vicious animals.” Rabon. at 292.

In a strong dissent, Justice Sanders states that RCW 16.08 sets out a comprehensive legislative scheme for regulating both the registration and execution of dangerous dogs. RCW 16.08.080; RCW 16.08.100. The state statute classifies dogs into two categories (dangerous and potentially dangerous) whereas the local ordinance did not. This creates confusion because the statute by its express terms only allows local authorities to place restrictions on potentially dangerous dogs. Thus, “[b]y eviscerating RCW 16.08's dual definitions of dogs, the City directly clashes with state statute." Id. at 299. Further, RCW 16.08 indicates the Legislature did not intend municipalities to impose greater restrictions on "potentially dangerous" dogs than those applicable to "dangerous" dogs because RCW 16.08.100 allows for execution of a "dangerous" dog in only limited and specific circumstances. This anomaly would encourage dog owners and defense attorneys to contend that the bite was so vicious that the dog qualifies as "dangerous" in order to spare the dog's life. This case demonstrates the difficulty that can arise with concurrent jurisdiction, especially in a heavily regulated area such as dangerous dogs.

A claim of preemption will not necessarily be sustained even if there is complex legislative regulation by the state of the subject matter. In fact, most courts will defer to the municipality’s exercise of police power. In Muehlieb v. City of Philadelphia, 574 A.2d 1208 (Pa.Cmwlth.,1990), the court denied a homeowner’s claim of preemption where the city sought to restrain her ownership of more than twelve dogs at her residence as a violation of a city code. Appellant argued that the state’s Dog Law, which apparently restricted ownership to less than 50 dogs, preempted the city’s Animal Control Law. The test, according to the court, called for an analysis of:

. . . whether the field or subject matter in which the ordinance operates, including its effects, is the same as that in which the state has acted. An affirmative answer calls for a further search for it is not enough that the legislature has legislated upon the subject. The ultimate question is whether, upon a survey of all the interests involved in the subject, it can be said with confidence that the legislature intended to immobilize the municipalities from dealing with local aspects otherwise within their power to act.

Id. at 1210. In denying plaintiff’s argument for preemption, the court stated her interpretation would grant “the unfettered right to house up to fifty dogs in her home without regard to the City's legitimate interest in protecting the health, safety and welfare of its residents.” Id. at 1211. There was nothing so comprehensive and pervasive in the Dog Law to preclude the City from exercising its police powers to limit the number of dogs under its Animal Control Law for the protection of the health, safety, and welfare of the citizens of Philadelphia. Indeed, the court found that the focus of the Dog Law is on the protection of dogs while the emphasis of the City's Animal Control Law is the protection of the health, safety and welfare. As a result, the court found significant the different interests sought to be protected under each law.

In a footnote, the court further added that the intent for local regulation is evidenced by the fact that that county and city treasurers play an important role in the collection of fees and in record keeping under the Dog Law. “We believe this evidences an intent by the legislature to permit, rather than preempt, local action in the area of dog regulation.” Id. at 1211. Notably, nearly every state provides by statute for some collection of license fees and dog taxes by statute. Under the Muehlieb reasoning, it can be argued that this legislative direction evinces an intent for local regulation of dogs, regardless of overriding state laws.

Many states provide that an empowered local official can summarily destroy loose and unlicensed dogs. Because local authority is often provided by state statute to license dogs within a city, the companion authority to impound or even destroy any unlicensed dogs is also granted. However, where a state statute provides for destruction of loose dogs, and a local ordinance suggests a different procedure to handle loose dogs, a preemption challenge may be asserted.

In Vukic v. Brunelle, 609 A.2d 938 (R.I.,1992), such a preemption challenge was presented. In that case, the dog owners challenged a state law that permitted local units to enact measures to destroy loose dogs after a dog officer shot and killed a Great Dane dog and her pup after the dogs escaped from the owners’ yard and wandered to another residence. The defendants contended that the language of RI ST § 4-13-12 that directed specially appointed dog officers to destroy all dogs found at large without a license superseded any local ordinances to the contrary. Id. Thus, the officer was carrying out his duty when he destroyed the two dogs. However, the plaintiffs argued that the terms of § 4-13-1 permitting municipalities to enact local dog ordinances "as they shall deem expedient" gave the town of Lincoln the right to create a procedural safeguard to ensure that prior to destroying unlicensed dogs every effort is made to find and notify the dog owners. See, Vukic at 941, citing Lincoln, R.I.Code § 3-26. Thus, the plaintiffs asserted that the Lincoln ordinance did not countermand the existing state statute, but rather attempted to mitigate the harsh result envisioned by the state statute. The court disagreed, finding that the defendant acted according to law when he destroyed the Great Danes. Thus, the Lincoln ordinance was superseded by the provisions of § 4-13-12.

The broad language of § 4-13-1 enabling municipalities the power to pass local dog ordinances "as they shall deem expedient" was not intended to supplant the statewide scheme for regulating dogs set out in chapter 13 of title 4 of the General Laws. Id. This intent, the court found, could be seen in the savings clause included in § 4-13-3, which provided that "[n]othing in this chapter shall be so construed as to repeal any ordinance concerning dogs, not inconsistent with the provisions hereof, which has heretofore been passed by any town or city council." RI ST § 4-13-3. Despite the statute’s harsh result, the court held that Section 4-13-12 mandated that dog officers and other appropriate officials "shall [ ] kill or destroy or cause to be killed or destroyed, all dogs going at large and not licensed and collared according to law." Id. at 941-942. Thus, any obligation that was created by the Lincoln ordinance to impound the dogs instead of killing them “must fall away in the face of the paramount state statute.” Id. at 942. (For more on local dog impound laws and due process, see Detailed Discussion of Dog Impound Laws).

There appears one area of municipal dog regulation susceptible to preemption; that of the imposition of criminal sanctions against dog owners for violation of local codes. In Responsible Dog Owners of Texas v. City of Richardson, 781 S.W.2d 667 (Tex.App.-Dallas,1989), the plaintiffs appealed an adverse summary judgment in favor of the City of Richardson that upheld a City of Richardson ordinance regulating vicious and dangerous animals, which specifically provided restrictions on the ownership of pit bull dogs.

Plaintiffs asserted that the ordinance was preempted by the enactment of the Texas Penal Code. The court first observed that the criminal codes provides that “no governmental subdivision or agency may enact or enforce a law that makes any conduct covered by this code an offense subject to a criminal penalty. This section shall apply only as long as the law governing the conduct proscribed by this code is legally enforceable.” Id. at 668; Tex. Penal Code Ann. § 1.08 (Vernon 1974). While the code provided for home rule authority by the city, the accompanying practice notes suggested that many previous laws employing a penal sanction enacted by municipalities have overlapped, duplicated, and conflicted with the state penal laws. Responsible Dog Owners, supra.

In reviewing the state law and the City of Richardson ordinance, the court found the city was attempting to regulate the conduct of owners as well as the ownership of certain vicious animals, more particularly pit bull dogs. In doing so, this ordinance attempted to regulate conduct already regulated by the Texas Penal Code. In deferring to what it termed a “commendable effort” by the city to protect its citizens, “the proper avenue for relief from the dangers of pit bull dogs, if such dangers in reality exist, lies with the Texas Legislature.” Responsible Dog Owners, 781 S.W.2d at 672 Thus, where city ordinances attempt to regulate dogs by providing criminal sanctions against the owners where state law already provides for a criminal offense, preemption occurs.

An examination of dog law litigation shows that preemption appears most likely to occur in those heavily regulated areas of state law, such as dangerous dogs or criminal laws. This is to prevent confusion in the application of dog law. There are, however, certain subjects that lend themselves to local control across most states. Some of these areas are expressed by statute while others are implied. Regardless of the nature of the control, constitutional parameters must be met.

Never make someone a priority in your life when that someone treats you like an option.

VI. ConclusionPolice power affords both local and state governments broad discretion to regulate dogs. Most states go further by delegating this authority to local municipalities that are often better aware of what dog laws are needed. However, conflict often arises when both levels of government attempt to regulate dogs. While preemption of local laws is the obvious answer, it usually creates additional questions as to the procedural enforcement of many dog-related laws. In any event, while the health, safety, and welfare of citizens are of paramount concern, the owner's right to have his or her claim fairly adjudicated is also important. Indeed, the legal status of a dog as mere property exists to many as only a legal fiction.

Never make someone a priority in your life when that someone treats you like an option.